How to go about getting an elderly person to agree to pay you as their caregiver?

Oh, I get it now. This one of the times where being 'nice' is 'not nice'.

This was an egregious case of worker abuse, where someone providing care was treated with an utter lack of care for her rights and for her humanity," said Labor Commissioner Julie A. Su. "I am pleased that through the Berman wage claim process, my office was able to help her get some of the hard earned wages she deserved. This is a sign that when workers come forward to file wage claims, they can win some measure of justice."

prnewswire/news-releases/labor-commissioner-awards-138386-to-caretaker-who-worked-round-the-clock-for-less-than-minimum-wage-300100191.html

SAN FRANCISCO, June 16, 2015 /PRNewswire-USNewswire/ -- California Labor Commissioner Julie A. Su awarded $138,386 in back pay to a caregiver who worked 16-hour days in San Francisco for less than minimum wage, usually without a day off. The amount includes minimum wage and severance pay violations, liquidated damages and waiting time penalties.

Francisca Vasquez, a Salvadoran war refugee, was hired in 1992 by siblings Magdalena Lindvall and Reynaldo Peña Jr. to work as a companion for their elderly parents for $400 a month. Eventually Vasquez became a housekeeper and then round-the-clock caregiver to their mother for $500 a month. Upon the mother's death, Vasquez was discharged.

"Workers are not always aware of their rights," said Christine Baker, Director of the Department of Industrial Relations (DIR). "California labor law protects domestic workers as well as others who work in industries susceptible to wage theft." The Labor Commissioner's Office, also known as the Division of Labor Standards Enforcement (DLSE), is a division within DIR.

Because Vasquez filed her claim two years into the three year statute of limitation for minimum wage claims, she could only collect wages on the last year she worked.

"This was an egregious case of worker abuse, where someone providing care was treated with an utter lack of care for her rights and for her humanity," said Labor Commissioner Julie A. Su. "I am pleased that through the Berman wage claim process, my office was able to help her get some of the hard earned wages she deserved. This is a sign that when workers come forward to file wage claims, they can win some measure of justice."

The Labor Commissioner awarded her $50,008 for wages, $48,209 in liquidated damages, $35,707 in interest, and $4,464 in penalties.

Vasquez was assisted in the wage claim process by the community organization Mujeres Unidas y Activas and the Legal Aid Society–Employment Law Center.

The Labor Commissioner's Office inspects workplaces for wage and hour violations, adjudicates wage claims, enforces prevailing wage rates and apprenticeship standards in public works projects, investigates retaliation and whistleblower complaints, issues licenses and registrations for businesses, and educates the public on labor laws. Updated information on California labor laws is available online.

The Wage Theft is a Crime public awareness campaign, launched last year by DIR and its Labor Commissioner's Office, has helped inform workers of their rights. The campaign includes multilingual print and outdoor advertising as well as radio commercials on ethnic stations in English, Spanish, Chinese, Vietnamese, Hmong and Tagalog.

Employees with work-related questions or complaints may call the toll-free California Workers' Information Line at (866) 924-9757 for recorded information in Spanish and English on a variety of work-related topics.

I agree on both points, txcamper. But the principles raised by the OP's situation are important to lots of people and maybe some people here. I don't want people to be misled into thinking that caregivers can expect payment even if no payment was promised, on some kid of "implied contract" theory. It doesn't serve anyone to go around with wrong information in their heads.

This post is over a year old. It would be nice if the original poster came back and told us how it all worked out. However, it doesn't do much good to continue to give her advice.

I think if the care recipient agreed to pay a fixed amount, say $200 per week, for the OP to care for her and has not paid it and has continued to accept the help, it is probably enforceable in court. But if there was a vague promise without a specified amount and nothing in writing it will be difficult to prove. If the person has said all along that they wouldn't pay cash as well as room and board, or only promised room and board, I think there's no way to claim now that cash should be paid (even if you're not living there).

I think the case of the housepainter was just that, a professional house painter. If I recall the case correctly, he painted the wrong house by mistake but the homeowner never informed him of the mistake but simply accepted the paint job. That's a different situation - as most people provide care for family members for free and in many cases, that includes family members or your spouse or romantic partner. The recipient could be thinking that the OP is helping her boyfriend with the caregiving tasks because she wants to help him out or because she considers the grandmother to be her own family member, too. The California case is also not applicable because in that case, the caregiver was paid to be a companion but he was paid less than minimum wage and he sued for the difference. I probably don't need to say that San Francisco is a very employee-friendly jurisdiction - they were the first to require domestic partner benefits, for example.

Even if the OP was willing to sue her boyfriend's grandmother, I think her legal case is very, very iffy. I agree with those who think the OP should leave the caregiving to the family members and get herself an actual paying job.

www.dir.ca.gov
News Release No.: 2015, Date: June 16, 2015
Labor Commissioner Awards $138,386 to Caretaker Who Worked Round the Clockfor Less Than Minimum Wage.San Francisco

In the decision of Folia v Trelinski, 1996 New Westminster Supreme Court Registry No. 19961104, a promise to care for a parent for life was found to be enforceable. It was held not to be uncertain


Unjust enrichment

Five elements must be proved to make a case of unjust enrichment: (1) an enrichment; (2) an impoverishment; (3) a connection between the enrichment and the impoverishment; (4) absence of justification for the enrichment and the
impoverishment and (5) an absence of a remedy provided by law.


Care giving responsibilities are challenging and time-consuming. It is important to understand
that careg iving can also have serious financial consequences. Women continue to be the primary
caregivers and are therefore at even greater risk of experiencing financial set-backs.
Some of the financial consequences of caregiving are obvious. Women often will decide to work
part-time, stop working, decline a promotion requiring longer hours or pass up a job or training
opportunity requiring travel. Women making these compromises at work often forfeit pay and benefits, miss out on opportunities for compounded returns on 401(k) matching contributions,and experience reduced savings and investments. There are also more subtle consequences.
They may even experience an inability to pay for home improvements that could increase the resale value of a residence, or to pursue additional education and degrees that could increase their earning power.
It is also important to remember that becoming a
caregiver can happen at any time, but often it may
happen as you are nearing retirement. Even older
adults who feel financially prepared for their own
retirement may suddenly find themselves
unprepared to manage the costs of
care giving.
If you are a caregiver, or expect you may
be one some day, it is important that you
take the necessary steps to avoid
compromising your own future financial
security.

A 2011 study showed that caregivers lost $303,880 in wages, Social Security benefits, and private pensions as a result of care giving responsibilities So is there a human cost to estate planning; yes there is…. It can be minimized if there is harmony in the family and the choices of individuals to serve roles (e.g. executor, trustee) are good choices. But if there is not, or there is a bad actor influencing the situation, the cost can indeed be a high one am constantly amazed at the greed shown by family members towards each other. Although I have been in practicing thirty years now with substantial experience in trust, probate and estate litigation, I have seen no change in the willingness of one or more family members to short-change another family member.

You would like to think in life that we will be rewarded for a job well done,sacrifices made to allow a loved one remain in her own home surrounded by family until the last 4 months of her life will be appreciated and respected. her expressed desire and goal being to preserve the trust thus make my sacrifice not without a future reward and a secure future, not to face a fiscal cliff and reality of years of Soc security contributions made.

The employment status of the caregiver can have a drastic effect on the entire family unit. A working caregiver can "incur significant losses in career development, salary and retirement income, and substantial out-of-pocket expenses as a result of their care giving obligations."'

The average loss of wealth experienced by caregivers is estimated to be "substantial, averaging $659,139 over the lifetime."'

In 1997 it was found that the stress of caring for an aging friend or relative resulted in one-tenth of the caregivers giving up work permanently.

The caregiver needs to show by “clear and convincing evidence,” a higher than normal standard, “that the transfer was not the product of fraud, duress, or undue influence.”

If the caregiver can show that the gift's size is no greater than it would have been before he or she became the caregiver, then he or she can overcome the presumptions.

The employment status of the caregiver can have a drastic effect on the entire family unit. A working caregiver can "incur significant losses in career development, salary and retirement income, and substantial out-of-pocket expenses as a result of their caregiving obligations."'

The average loss of wealth experienced by caregivers is estimated to be "substantial, averaging $659,139 over the lifetime."'

In 1997 it was found that the stress of caring for an aging friend or relative resulted in one-tenth of the caregivers giving up work permanently. under the "mutuality of benefits" policy, a child who has always lived with his or her parents will have a harder time proving that the services were not rendered gratuitously than a child who has lived separately from the parent and returned home to render care.


Look to contract theory in determining whether a
family member will be compensated for providing services to an elder relative in need. Generally, a contract to will property in exchange for services is valid and enforceable."
' The Uniform Probate Code provides:

"[a] contract to make a will or devise. can be established
only by,
(1) provisions of a will stating material provisions of the
contract;
(2) an express reference in a will to a contract and extrinsic
evidence proving the terms of the contract; or
(3) a writing signed by the decedent evidencing the contract."'
2 The Georgia Supreme Court also recognized that contracts to will property have been upheld in America from the earliest times and the validity of these contracts seem to be beyond all doubt." 3 However, this general rule does not hold true in all situations.
Contracts to will property in exchange for services are also valid and enforceable when they concern family members,"
4 but there is an additional hurdle to overcome when dealing with such situations.

The presumption may be rebutted by sufficient evidence of a contract, express or implied, to negate any presumption that the services were performed gratuitously.

Estate of Jesmer v. Rohlev, 241 Ill. App. 3d 798, 803, 609 N.E.2d 816, 820 (1993).
The amount of evidence sufficient to rebut the presumption of gratuity depends on the facts of each case;
the presumption diminishes in direct proportion to the remoteness of the degree and character of the family relationship and the character of the duties performed

If the caregiver can show that the gift's size is no greater than it would have been before he or she became the caregiver, then he or she can overcome the presumption.


"Statutory Custodial Claim"

Effective January 1, 1989, a new Section 18-1.1 was added to the Probate Act.
The "Statutory Custodial Claim" was enacted to remedy the injustice of family members who rendered services and then were unable to prove the agreement with the Decedent or the value of the services.

One of a list of enumerated family members who dedicates himself or herself to the care of a disabled person by living with and personally caring for the disabled person for at least three years is entitled to a claim against the Estate upon the death of the disabled person.

The decision on the claim shall take into consideration the Claimant's lost employment opportunities, lost lifestyle opportunities, and emotional distress experienced as a result of personally caring for the disabled person.

Wait a minute. Your latest post says you don't live there.

Does your boyfriend live with her? What the heck is going on? Why are you doing this? In my opinion, you are being used. I'm not sure if it's by your boyfriend's gram, your boyfriend, or your obvious propensity to volunteer. Since SHE has dementia, I'll leave that call to you.

There was no "implied contract" to pay her a dime. When she didn't get paid the first month, second month, third month, 36th month, she was gifting her services or happy with the room-and-board trade-off. No judge would see it any other way.

If gram ever goes into a nursing home at Medicaid's expense, any money paid to HIM as care giver will be considered a gift of gram's assets. She can't do that.

You, though, are a different story. Medicaid, at least, accepts that non-family members are entitled to be paid and monies paid to them (reasonable amounts) are NOT considered a gift of assets.

Good luck with suing for lost wages. Sure, you can sue. Pretty sure you'd lose.

You had no meeting of the minds with her to pay you a dime. You have accepted that your payment (I'm assuming) comes in the form of room-and-board for three years. No reasonable judge is going to look back and write a contract for you that didn't exist . . . which is what would have to happen in order for you to collect back pay.

So here's your solution as Judge Judy would give it to you: MOVE!!!

Slavery was outlawed in this country YEARS ago. You're tired of the arrangement of free room-and-board for two people living in gram's house in return for taking care of her. And perhaps you should be. So, move.

Do you have children? Are you getting to be a stay-at-home mom while doing this? Is your boyfriend working? Are you paying rent, electric, gas, heat, air conditioning, phone, food, etc? Weigh the value of that recompense. If you are unhappy with the trade-off and are prepared to move, tell gram you want $250 a week for taking care of her and see what she says.

If she says "No way!" pack your things.

The law says if a man starts painting your home and you allow it and continue to enjoy it then whether she agreed to pay you for it or not, she has accepted consideration for the enforceable contract.
You cannot take advantage of someone just because you can, saying I never made any contract with Joe to paint my house or fix my fence or my roof, but I will continue to allow it, expect it, even demand it and just be a sponge ,not compensate him, alleging, I never said I would pay anyone!
An implied contract was made and accepted as evidenced by the continued acceptance and enjoyment of the consideration provided.
I have seen this several times, usually it is due to strokes and major personality changes, other times narcisstic personality of the mothers can magnify or without any reservation says or does terrible things to get even, promising eventual payment via a trust that in all likelihood is actually a "stale" AB trust
if her husbands died already, 9 of 10 abusers will breach their fiduciary duties to the trust and disenfranchise the beneficiaries of the now irrevocable B trust! Al while acting as if she has the say so for the entire estate and plays care givers who have become dependent financially like a fiddle.
evil hired caregivers love a situation as this.

Wow. the comments above are all seeming to say just up & leave this poor elderly person in a bind, possibly life-threatening.
Yes, there is a dependency going on, but maybe I'm in the minority, but I believe it's possible to get this lady to actually pay.
I'm in a similar situation with my parents, and I plan to see an elder-law attorney, and get a genuine Caregiving Contract, which I will bring to my parents, and we can review it all together, and have them see, the True Value of all that I do for them.
This includes:
24/7/365 being On Call for their emergencies (personal and things like sump pumps overflowing)
Making their Doctor appointments
Driving them to doctor, in my own car
Physically getting them into the doctor's office building with their walkers & making sure they don't fall on the icey sidewalks, or get run over by younger folks who don't give a damn about old folks
Taking notes at the doctors, asking pertinent questions,
RELAYING all of the above info to the lazy out of town sibs who could really care less about their parents
Make nutritious home-cooked meals, 12 at a time, put them into Glad containers and deliver every Sunday,
Sit and eat with them several times per week, make conversation
Clean up their kitchen, bathroom, do laundry, change bed linens
Pick up prescriptions, explain prescriptions, fill their Pill Minders
Call them to see if new prescription has had any side effects
Rush over there when they don't answer the phone
DOCUMENT the heck out of all activities I do for and with my parents, because you never know when those lazy out of town sibs might decide that I'm obviously taking advantage of the parents.....yes they might have bought me an ice cream cone or cookie, whaddaya gonna do about it? cry?
Etc Etc Etc

Room and board is inclusive in the pay of a caregiver, either you are an employee or an independent contractor,slavery was abolished and minimum wage is $8 an hour with overtime after 8 and time and a half after 12 hours. If you cannot get 5 hours of sleep per night it is to be paid hourly!
As an employee you will require all taxes and disability, unemployment, social security, Homowners wont cover caregivers so workmans comp is required, either that or hire an agenc.
It is despicable to save one from a cre home preserving the estate at your expense and portray you as a leech when room and board is inclusive and less than minimum required , sorry!
You can g back 3 years sometimes 4 if circumstances allow..
It is $4,000- $6000 a month for 24-7 365 care
15 hrs a day 6 days a week at min wage after all taxes et paid is $5,000 a week
IF you must be awakened all night is neraly $7,000 a month, at min wage!

Room and board is inclusive in the pay of a caregiver, either you are an employee or an independent contractor,slavery was abolished and minimum wage is $8 an hour with overtime after 8 and time and a half after 12 hours. If you cannot get 5 hours of sleep per night it is to be paid hourly!
As an employee you will require all taxes and disability, unemployment, social security, Homowners wont cover caregivers so workmans comp is required, either that or hire an agenc.
It is despicable to save one from a cre home preserving the estate at your expense and portray you as a leech when room and board is inclusive and less than minimum required , sorry!
You can g back 3 years sometimes 4 if circumstances allow..
It is $4,000- $6000 a month for 24-7 365 care
15 hrs a day 6 days a week at min wage after all taxes et paid is $5,000 a week
IF you must be awakened all night is neraly $7,000 a month, at min wage!

amoon, this is not working out for you. Leave, sign up with an agency (if you are qualified) to be a caregiver. You may be a nice person, but it doesn't mean that you should give away your life for free. We all need jobs, not only for the money, but for the increased sense of self efficacy it creates.

I agree,
Stop taking care of her.When she realizes she needs someone to help her she will pay. Sounds harsh to say but,it's the truth. Old people use their Wills to obtain free help. They do it well. They use greed as a tool to get the word free.
They all still live in the 50's with no idea what cost is today. They have no clue that gas is $4 bucks a gal or how far a gal of gas gets ya. They are tight and don't want to pay until they are scarred and alone. Stop all contact for a month and you will see they will kickout the jack.

If you want to get paid and she doesn't want to pay you then stop caring for her. This is your boyfriend's family, not yours. Support him in what he does but remove yourself from the equation. If you're too nice to do this then accept the fact that you're not being paid and continue to care for your boyfriend's grandma with a smile.

She did agree two years ago when she came home from a nursing home she was at for a short time, she agreed to room and board but I no longer live there due to the fact she would constantly throw it in our faces, saying we shouldnt get paid too if we live there with her. Even her former attorney said we would have to work it out with her if we wanted to be compensted, because she does have the money.

You can't sue for lost wages because she never agreed to pay you. Walk away, let her manage on her own. Go out and get a job with a real paycheck.